Reports that former Financial Review boss Michael Gill is suing his former employer for breaches of anti-discrimination laws reflect a growing trend away from the limitations of suing for breach of contract.
Employees – or at least their lawyers – are becoming increasingly creative with the use of human rights legislation to press claims arising from termination of employment. This includes the adverse action provisions of the Fair Work Act. The most obvious reason for the trend is that no opportunity is lost for the aggrieved party. The mechanism for making claims takes them to the Federal Court or the Federal Magistrates’ Court, both of which have the jurisdiction to hear breach of contract claims as well. So, rather than limit themselves to simple contract claims in State courts, the field opens up to develop Human Rights jurisprudence.
Gill’s case is interesting. He is claiming discrimination on the basis of his age in Fairfax’s failure to appoint him to the CEO role now occupied by Greg Hywood, and for terminating his employment. According to reports in The Australian newspaper, Gill claims, among other things, that he was told he had been in the position too long and that, as a result, age was a factor in his termination.
There is an interesting dilemma for businesses looking to refresh management. Gill’s term in the top job at Financial Review was 12 years – by any measure it is a long time in any position. Without commenting on Gill’s case, which would be inappropriate, one could well imagine a board looking to bring in fresh ideas after that length of time. Indeed, some might argue it is the responsibility of the board to consider it.
But SMEs might be frightened off by the prospect that the injection of different – not necessarily “young”, “fresh” or “new” – energy, ideas and thoughts might lead to expensive litigation. As is the case with Fair Work Act “general protection” claims, another opportunity is opened, which lawyers will exploit.
Putting a fence around legislation of this type to ensure that it protects the disadvantaged people in our community that it was intended to protect, and isn’t a tool for the wealthy to exploit in not an easy exercise. The old unfair contract jurisdiction in NSW was a prime example. But it is something that the legislature needs to seriously consider.
